Difference between revisions of "The Legislation on Family Law"

The most important pieces of legislation about family law in British Columbia are the provincial ''[[Family Law Act]]'' and the federal ''[[Divorce Act]]''. There is also a very important federal regulation, known as the [[Child Support Guidelines]], and an important academic paper, called the [[The Spousal Support Advisory Guidelines]]. You may also run into other provincial and federal laws, like the ''[http://canlii.ca/t/8481 Name Act]'', the ''[http://canlii.ca/t/848q Partition of Property Act],'' or the ''[http://canlii.ca/t/7vfd Canada Pension Plan]'', which weren't written just for family law disputes but may still relate to your situation. There are also some international treaties that might apply, most commonly the [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on Child Abduction] and the [https://www.unhcr.org/uk/4aa76b319.pdf UN Convention on the Rights of the Child].

This section describes the primary legislation on family law, and briefly reviews some of the more important secondary legislation and international treaties touching on family law issues.

==Two important statutes, one important regulation and one influential paper==

 

 

 

Both the ''Divorce Act'' and the ''Family Law Act'' rely on the [[Child Support Guidelines]] to calculate child support and the payment of children's special or extraordinary expenses. The Guidelines are a regulation to the ''Divorce Act'' and are adopted by the ''Family Law Act''.

 

Spousal support is usually calculated using the [[The Spousal Support Advisory Guidelines]], whether your case is under the ''Divorce Act'' or the ''Family Law Act''. The Advisory Guidelines aren't a statute or a regulation. They are an academic paper that proposes different formulas for calculating the amount of spousal support that should be paid and the length of time it should be paid for. Even though the Advisory Guidelines are a paper, all of Canada's courts have accepted their formulas as a good way to calculate spousal support.

 

 

 

Before moving on, let's talk about how to read laws made by the government, called ''legislation'', ''statutes'', and ''acts''. (All of these terms mean the same thing.) We'll use British Columbia's ''Family Law Act'' as an example.

 

 

In British Columbia, we talk about the provincial ''Family Law Act'' and the Family Law Act Regulation, and the federal ''Divorce Act'' and the Child Support Guidelines. The Child Support Guidelines are a regulation to the ''Divorce Act'', and the Family Law Act Regulation is, like the name suggests, a regulation to the ''Family Law Act''.

 

 

 

 

Every now and then the government reorganizes all the laws it has made into one set of books, sorting the laws alphabetically. The federal government did this since 1985, and the last time British Columbia did this was in 1996.  When this happens, SBC is replaced by ''RSBC'' (this stands for the "Revised Statutes of British Columbia") and the law gets a new chapter number. The old ''Family Relations Act'', the law the ''Family Law Act'' replaced, first became law in 1978. However, the statutes of British Columbia were consolidated in 1996, and when that happened, the title of the ''Family Relations Act'' changed from the ''Family Relations Act'', SBC 1978, c. 20 to become the ''Family Relations Act'', RSBC 1996, c. 128''.

 

Other provinces and the federal government follow the same pattern. The title of Alberta's ''Family Law Act'' is the ''Family Law Act'', SA 2003, c. F-4.5 (Statutes of Alberta, 2003, chapter F-4.5), and the title of the ''Divorce Act'' is the ''Divorce Act'', RSC 1985, c. 3 (2nd Supp.) (Revised Statutes of Canada of 1985, chapter 3, second supplement).

 

The individual rules in a statute are broken down into numbered paragraphs, called '''sections'''. This helps people identify the specific rule they are talking about. This is section 23 of the ''Family Law Act'':

<blockquote><tt>23 (1) For all purposes of the law of British Columbia,</tt></blockquote>

<blockquote><tt>(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another person by birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the description because of the relationship of parent and child as determined under this Part.</tt></blockquote>

You'll see that this rule is broken down into smaller bits. These are called '''subsections'''. If someone was talking about the last part of section 23, they would say "section 23, subsection 2" or "section 23 sub 2." In writing, you would put "section 23(2)." (Just as ''chapter'' is abbreviated as '''c.''', ''section'' is abbreviated as '''s.''' If we are talking about more than one section, ''sections'' is abbreviated as '''ss.''' ''Subsection'' is abbreviated as '''s-s.''' and the plural is written as '''s-ss.''')

Long statutes like the ''Family Law Act'' sometimes have their subject matter broken into big chunks called '''parts'''. In the ''Family Law Act'', Part 3 is titled "Parentage" and has all of the rules about deciding who the parents of a child are. Part 4 is titled "Care of and Time with Children" and has all the rules about parenting children. Long parts are sometimes broken into smaller chunks called '''divisions'''. Part 4 of the ''Family Law Act'' includes Division 2: Parenting Arrangements, and Division 3: Guardianship. Part 4, Division 2 has all of the rules about parental responsibilities, parenting time and contact, while Part 4, Division 3 has all the rules about appointing and removing people as the guardians of a child.

In this resource, we don't worry about using the full legal titles of legislation, and we mostly talk about sections rather than parts and divisions.

The [[Child Support Guidelines]], often referred to as just "the Guidelines," are a federal regulation that standardizes child support orders throughout Canada, except in Quebec. The Guidelines talk about how income is calculated and how children's special expenses are shared between parents, and provide a series of tables, one for each province and territory, which set out how much child support should be paid based on the payor's income and the number of children support is being paid for.

 

 

 

 

 

 

*the payment of the table amount would cause "undue hardship" to either the payor or the recipient.

The Child Support Guidelines also talk about how the payor and recipient share the cost of the children's ''special or extraordinary expenses''. ("Special expenses" include things like day care costs, medical insurance premiums, health care costs and the cost of college or university. "Extraordinary expenses" include primary and secondary school expenses and the cost of extracurricular activities, like sports teams or music lessons.) Most of the time, the payor and recipient share qualifying expenses according to their incomes.

The Child Support Guidelines, and the exceptions to the Guidelines' tables, are discussed in a lot more detail in the chapter [[Child Support]].

[[The Spousal Support Advisory Guidelines]], often called "the Advisory Guidelines," are not a law. They are an academic paper that describes a number of mathematical formulas that can be used to calculate how much spousal support should be paid and how long spousal support should be paid for, once a spouse's entitlement to receive spousal support has been proven. Although the Advisory Guidelines are not a law, the courts of British Columbia and the rest of Canada routinely rely on the Advisory Guidelines' formulas when making decisions about spousal support. The Advisory Guidelines cannot be ignored if you have a problem involving the payment of spousal support.

 

 

 

 

 

*when the family has a lot of debts to pay,

*when a spouse is caring for children from a previous relationship,

*when a spouse is ill or disabled, and

*when a child has expensive special needs.

The Advisory Guidelines' formulas, and the way the courts have dealt with the Advisory Guidelines, are discussed in more detail in the chapter [[Spousal Support]] in the section [[The Spousal Support Advisory Guidelines]].

The federal ''[http://canlii.ca/t/7vq2 Marriage (Prohibited Degrees) Act]'' sets out the degrees of ''consanguinity'' &mdash; relatedness by blood or adoption &mdash; a couple cannot have if they are going to marry each other. The federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'' defines marriage as the "union of two persons" rather than "the union of a man and a woman," allowing same-sex couples to marry, just as opposite-sex couples do, and makes related changes to other federal legislation, like the ''[[Divorce Act]]'', allowing same-sex couples to divorce, just as opposite-sex couples do.

The provincial ''[http://canlii.ca/t/846b Marriage Act]'' deals with the formalities of marriage, and covers such things as who is entitled to marry people, issuing marriage licences, and the age at which a couple can legally marry.

More information about marrying and marriage, including void marriages and invalid marriages, is available in the [[Married Spouses and the Law on Marriage]] section in the [[Family Relationships]] chapter.

The provincial ''[http://canlii.ca/t/84g5 Adoption Act]'' deals with such things as who can give a child up for adoption, who may adopt a child, and the general ins and outs of the adoption process. The process for adoption is described in more detail in the section on [[Adopting Children]] in the chapter [[Family Relationships]].

The provincial ''[http://canlii.ca/t/84kw Parental Liability Act]'' says that parents whose children have been convicted of causing damage to or loss of property may be held responsible for loss caused by their children's offences, up to a maximum of $10,000.

*monitor the effectiveness and responsiveness of child-related s and programs in British Columbia,

The provincial ''[http://canlii.ca/t/84dv Child, Family and Community Service Act]'' gives the government, specifically the [http://www.gov.bc.ca/mcf/ Ministry for Children and Family Development], the power to intervene when children are believed to be suffering from abuse or neglect or are at risk of suffering from abuse or neglect. The act regulates the conditions under which child protection workers may intervene, when children can be seized, the conditions in which children may be placed in the care of the government, and specifies the authority and powers of child protection workers.

The provincial ''[http://canlii.ca/t/84l3 Interjurisdictional Support Orders Act]'' allows support orders made outside of British Columbia to be registered in this province for enforcement. It also allows someone affected by a registered order to start a process here that may result in the variation of that order by the court that originally made the order. The act does not apply to all support orders, only to the orders of the countries, provinces, and states that have an agreement with British Columbia about support orders.

The provincial ''[http://canlii.ca/t/8451 Land (Spouse Protection) Act]'' protects the rights of married spouses and unmarried spouses to their interest in their family home (called a "homestead" in the act) by allowing them to file an "entry" on the title of the property that can stop the property from being sold. A spouse seeking this protection must file an entry with the land title office while they are ''still in the relationship''. The act stops applying when spouses separate.  

There's more information about naming and changing names in the aptly-named [[Naming and Changes of Name]] section of the [[Family Law and Other Legal Issues]] chapter.

Canada is a signatory to many international agreements, from agreements about the treatment of prisoners in wartime to agreements about money laundering. In family law, the two most important treaties concern the wrongful removal of children from a country and the human rights of children.

The [http://www.hcch.net/index_en.php?act=conventions.text&cid=24 Hague Convention on the Civil Aspects of International Child Abduction] says what steps a signatory country must take when someone has wrongfully taken a child into that country. The convention explains how someone from the departure country can make an application for an order in the destination country for the return of the child. It outlines the defences that can be made to applications like these, the different orders the court in the destination country can make, and the factors that court must consider in deciding whether to make those orders.

More information about the Hague Convention, including a list of signatory countries, can be found in the chapter [[Resolving Family Law Problems in Court]] in the section [[Enforcing Orders in Family Matters]].

The United Nations [https://www.unhcr.org/uk/4aa76b319.pdf Convention on the Rights of the Child] is an international treaty and law in Canada. The convention says that children have the basic human rights that adults do, as well as other rights such as the right to be protected from abuse and exploitation, the right to education and health care, and the right to an adequate standard of living. The convention also says, at article 12, that the views of children must be heard in any legal proceeding that affects their interests:

You can find more information about how the views of children are heard in family law disputes in the chapter [[Children and Parenting after Separation]].

The ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'' is about enforcing court orders for the payment of money or transfer of goods or property. The countries that have signed up can be found in the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/courtorderenflist Notice of Reciprocating Jurisdictions].

You can find more information about the ''Interjurisdictional Support Orders Act'' in the chapter [[Child Support]], in the section [[Making Changes to Child Support]]. You can find more information about enforcement of orders in the chapter [[Resolving Family Law Problems in Court]], in the section [[Enforcing Orders in Family Matters]].

{{REVIEWED | reviewer = [[JP Boyd]], 16 February 2020}}